David W. Owens. Land Use Law in North Carolina

Transcription

1 David W. Owens Land Use Law in North Carolina Second Edition 2011

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3 For Phil Green, Bob Stipe, and Rich Ducker, who each devoted decades of exemplary service at the Institute of Government, now the School of Government, to advance our understanding of land use law and for Ellen, Jonathan, Andrew, and Adam, who each endured decades of land use law stories at home with uncommon grace and good humor.

4 The School of Government at the University of North Carolina at Chapel Hill works to improve the lives of North Carolinians by engaging in practical scholarship that helps public officials and citizens understand and improve state and local government. Established in 1931 as the Institute of Government, the School provides educational, advisory, and research services for state and local governments. The School of Government is also home to a nationally ranked graduate program in public administration and specialized centers focused on information technology, environmental finance, and civic education for youth. As the largest university-based local government training, advisory, and research organization in the United States, the School of Government offers up to 200 courses, seminars, and specialized conferences for more than 12,000 public officials each year. In addition, faculty members annually publish approximately fifty books, book chapters, bulletins, and other reference works related to state and local government. Each day that the General Assembly is in session, the School produces the Daily Bulletin, which reports on the day s activities for members of the legislature and others who need to follow the course of legislation. The Master of Public Administration Program is a full-time, two-year program that serves up to sixty students annually. It consistently ranks among the best public administration graduate programs in the country, particularly in city management. With courses ranging from public policy analysis to ethics and management, the program educates leaders for local, state, and federal governments and nonprofit organizations. Operating support for the School of Government s programs and activities comes from many sources, including state appropriations, local government membership dues, private contributions, publication sales, course fees, and service contracts. Visit or call for more information on the School s courses, publications, programs, and services. Michael R. Smith, Dean Thomas H. Thornburg, Se n ior Associate Dean Frayda S. Bluestein, Associate Dean for Facu lty Deve lopm e nt Todd A. Nicolet, Associate Dean for Ope rations Ann Cary Simpson, Associate Dean for Deve lopm e nt Bradley G. Volk, Associate Dean for Adm i n istration FACULTY Gregory S. Allison David N. Ammons Ann M. Anderson A. Fleming Bell, II Maureen M. Berner Mark F. Botts Michael Crowell Shea Riggsbee Denning James C. Drennan Richard D. Ducker Joseph S. Ferrell Alyson A. Grine Norma Houston Cheryl Daniels Howell Jeffrey A. Hughes Willow S. Jacobson Robert P. Joyce Kenneth L. Joyner Diane M. Juffras Dona G. Lewandowski James M. Markham Janet Mason Christopher B. McLaughlin Laurie L. Mesibov Kara A. Millonzi Jill D. Moore Jonathan Q. Morgan Ricardo S. Morse C. Tyler Mulligan David W. Owens William C. Rivenbark Dale J. Roenigk John Rubin Jessica Smith Karl W. Smith Carl W. Stenberg III John B. Stephens Charles Szypszak Shannon H. Tufts Vaughn Upshaw Aimee N. Wall Jeffrey B. Welty Richard B. Whisnant Gordon P. Whitaker 2011 School of Government The University of North Carolina at Chapel Hill First edition Use of this publication for commercial purposes or without acknowledgment of its source is prohibited. Reproducing, distributing, or otherwise making available to a non-purchaser the entire publication, or a substantial portion of it, without express permission, is prohibited. Printed in the United States of America ISBN This publication is printed on permanent, acid-free paper in compliance with the North Carolina General Statutes. Printed on recycled paper

5 Contents PART 1 Historical Background Chapter 1 Introduction 3 Chapter 2 Framework for Decision Making 5 Types of Land Use Decisions 5 Legislative 5 Quasi-Judicial 5 Advisory 5 Administrative/Ministerial 6 Characterization of Particular Decisions 6 Implications of Characterization 7 Actors in the Process 8 Governing Board 8 Planning Board 8 Board of Adjustment 9 Staff 11 Other Boards and Commissions 11 Nongovernmental Groups 11 Intergovernmental Coordination 11 Chapter 3 Evolution of Government Regulation of Development 13 Early Development Planning and Regulation 13 Early Zoning Activity 14 Zoning in the Post World War II Era 16 Range of Development Regulations Used 18 Chapter 4 Authority for Local Regulation of Development 21 Explicit Grants of Authority 21 Overlapping Grants of Authority 22 Scope of Implied Delegation of Authority 22 Chapter 5 Geographic Jurisdiction for Land Development Regulation 27 Municipalities 27 Counties 28 Municipal Extraterritorial Authority 29 General Law 29 Extraterritorial Land Use Regulatory Authority 30 Geographic Area Covered 32 Process to Establish Extraterritorial Jurisdiction 33 Effects of Changes in Jurisdiction 36 PART 2 Land Use and Development Regulations Chapter 6 Zoning Ordinances 39 Use Districts 40 Early Zoning Ordinances 40 Increasing Number of Districts 40 Contemporary Zoning Ordinances 41 Regulation of Uses within Districts 43 Height, Bulk, and Area Regulations 45 Other Regulatory Provisions 46 Chapter 7 Subdivision Ordinances 49 Purpose and Content 49 Definitions and Exemptions 50 Approval Process 52 Exactions 53 Chapter 8 Building and Housing Codes 55 Building Codes 55 Housing Codes 57 Chapter 9 Growth Management Regulations 59 Moratoria 59 Authority and Process Prior to Authority and Process after Constitutional Limitations on Moratoria 62 Adequate Public Facility Ordinances and Impact Fees 63 Urban Growth Boundaries 66 Inclusionary Zoning 67 Affordable-Housing Initiatives 67 Employment and Other Linkage Requirements 68 Design Standards and Form-Based Codes 68 Traditional Neighborhood Design 68 Design Standards 69 Form-Based Codes 70 Chapter 10 Environmental Regulations 73 Water Quality Protection 73 Stormwater Controls 73 Nutrient Reduction and Basin-Wide Strategies 75 Water Supply Watersheds 76 Coastal Resources and Wetland Protection 76 Coastal Management 76 Wetlands Regulation 82 v

6 vi Contents PART 3 Other Environmental Regulations 83 Brownfield Redevelopment 83 Environmental Impact Statements 83 Floodplain Regulation 84 Hazardous Waste Regulation 85 Landfills 86 Mountain Resources 86 Sedimentation and Erosion Control 87 Tree Protection 87 Wind Energy 88 Legislative Decisions Chapter 11 Adoption, Amendment, and Repeal of Land Use Regulatory Ordinances 91 Applicability 91 Observance of Statutory and Ordinance Procedural Requirements 93 Consequences of Failure to Observe Requirements 94 Appointment of a Planning Board and Recommendations on Ordinances 94 Public Hearing 96 Published Notice 96 Individual Mailed Notice 97 Posted Notice 99 Actual Notice 100 Conduct of the Hearing 100 Additional Hearings 101 Protest Petitions 103 Initiation and Reconsideration of Amendments 107 Governing Board Action 109 Delegation 109 Exercise of Discretion 110 Legislative Motives 110 Statement of Rationale 111 Closed Sessions 112 Voting 112 Referenda 112 Filing the Zoning Ordinance and Map 113 Chapter 12 Spot Zoning 115 Legal Basis for Stricter Scrutiny 115 Defining Spot Zoning 118 Factors in Validity 119 Size of Tract 119 Compatibility with Plan 120 Balancing Benefits and Detriments 122 Relationship of Uses 123 Chapter 13 Contract and Conditional Zoning 125 Conditions on Rezonings 125 Failure to Consider All Permissible Uses 126 Contract Zoning 129 Conditional Use District Zoning 129 Conditional Zoning 131 PART 4 Quasi-Judicial Decisions Chapter 14 Quasi-Judicial Land Use Regulatory Decisions 137 Applicability 137 Constitutional Requirements 138 Separation of Powers 139 Jury Trial 139 Due Process 140 Statutory Provisions 141 Chapter 15 Quasi-Judicial Procedures 143 Initiating a Quasi-Judicial Hearing 143 Time Period to Initiate Action 143 Standing to Participate 144 Notice of Hearing 145 Gathering Evidence 145 Quality and Quantity of Evidence Required 145 Burden of Production 146 Subpoenas 146 Oaths 146 Presentation of Testimony and Exhibits 147 Cross-Examination and Rebuttal Evidence 148 Hearsay Evidence 149 Opinion Evidence 150 Ex Parte Evidence 151 Local Procedural Standards 152 Record 152 Making a Decision 153 Deliberation 153 Impartiality 153 Change in Board Membership 154 Voting 154 Findings of Fact 155 Conclusions on Standards 156 Conditions 156 Impact of Decisions 158 Precedent 158 Res Judicata 158 Chapter 16 Special and Conditional Use Permits 159 Adequate Guiding Standards 161 Burden of Production and Persuasion 162 Adequacy of Evidence 163 Endangering the Public Health or Safety 164 Harmony with the Area 165 Injure Value of Adjoining Property 167 Traffic Impacts 168 Conformity with the Comprehensive Plan 168 Public Necessity 169 Chapter 17 Variances 171 Statutory Authority for Variances 171 Standards 173 Impact of Regulation on Petitioner 173 Impact of the Variance on Community Interests 176 Conditions on Variances 178 Chapter 18 Appeals of Staff Determinations and Interpretations of Ordinances 181 Final Decision 181

7 Contents vii Rules of Interpretation 182 Plain Meaning 184 Common Definitions 184 Intent 186 Specialized Rules of Construction 186 PART 5 Application and Enforcement of Regulations Chapter 19 Vested Rights 191 Common Law Vested Rights 191 Applicability 192 Legal Basis 193 Requirements 194 Phased Developments 201 Duration 201 Statutory Vested Rights 202 Building Permits 202 Site Specific and Phased Development Plans 203 Development Agreements 204 Ordinance Provisions 213 Chapter 20 Nonconformities 215 Options 215 Immediate Termination 216 Authority to Allow Continuation 217 Limits on Continuation 218 Expansion, Enlargement, and Intensification 219 Repair and Replacement 222 Change in Use 223 Resumption and Abandonment 224 Amortization 225 Concept 225 Case Law 226 Statutory Limits on Use 228 Chapter 21 Administration and Enforcement 231 Administration 231 Allocation of Staff Responsibilities 231 Staff Reports 232 Record Keeping 232 Staff Interpretations 233 Fees 234 Inspections 234 Enforcement 236 Notice of Violation, Stop Work Orders, and Permit Revocation 236 Sanctions and Remedies 238 Settlement 240 Disposition of Fines and Penalties 241 Enforcement of Building and Housing Codes 241 Enforcement of Subdivision Ordinances 243 Selective Enforcement 243 Defenses to Enforcement 244 Estoppel 244 Laches 245 Liability 246 Individual Liability 246 Liability of the Unit of Government 248 PART 6 State and Federal Statutory and Constitutional Limits Chapter 22 State Statutory Limitations on Land Use Regulatory Discretion 253 Agricultural Uses 253 Alcohol Sales 257 Comprehensive Planning 258 Family Care Homes 263 Historic District and Landmark Regulations 263 Manufactured and Modular Housing 266 Preemption 268 Wireless Telecommunication Facilities 270 Miscellaneous Additional Restrictions 270 Affordable Housing 270 Amateur Radio Antennae 271 Cemeteries and Grave Sites 271 Government Buildings and Land Uses 272 Government Flags 272 Gun Sales 273 Palmistry 273 Pawnshops 273 Shooting Ranges 273 Solar Collectors 273 Utility Transmission Lines 274 Video Poker 274 Chapter 23 Federal Statutory Limitations on Land Use Regulatory Discretion 275 Fair Housing 276 Telecommunications 279 Wireless Telecommunication Towers 279 Satellite Reception Dishes 283 Other Radio Towers 283 Outdoor Advertising and Junkyards Near Federal Highways 284 Railroad Facilities 285 Chapter 24 Takings 287 Overview of Federal Decisions 287 North Carolina Application 290 Exactions 293 Chapter 25 Due Process and Equal Protection 295 Due Process 295 Arbitrary and Capricious 296 Legitimate Objectives 297 Relationship of Means to Ends 301 Vagueness 301 Conflicts of Interest 302 Equal Protection 305 Chapter 26 Regulation of Adult Businesses 309 Scope of First Amendment Protections 310 Obscenity 310 Conduct 311 Vagueness and Over Breadth 311 First Amendment Framework 313 Content Neutrality 313 Locational Restrictions 314 Limits on Nudity and Exposure by Performers 314 Prior Restraint 315 Alcohol Sales and the First Amendment 316

8 viii Contents Application of First Amendment Principles to Adult Businesses 316 Motive and Content Neutrality 316 Relevant Studies of Secondary Impacts 317 Reasonable Alternative Avenues for Expression 319 Narrowly Tailored Restrictions 322 Restrictions on Alcohol in Adult Establishments 322 Clothing Restrictions 323 Other Operational Regulations 324 Prior Restraint 325 Chapter 27 Regulation of Religious Land Uses 329 Overview of First Amendment Issues 330 Statutory Protection of Religious Land Uses 332 Religious Freedom Restoration Act 332 Religious Land Use and Institutionalized Persons Act 333 Scope of RLUIPA Coverage 333 Defining a Substantial Burden 334 Application of Substantial Burden and Unreasonable Limitation Tests 335 Defining a Compelling State Interest and Employing the Least Restrictive Means 338 Treating Religious Land Uses on Equal Terms 339 Chapter 28 Sign Regulation and the First Amendment 343 First Amendment Principles 343 Application to Sign Regulation 345 Burden on Speech 345 Public Forum 345 Relation to Substantial Governmental Interests 346 Typical Time, Place, and Manner Restrictions 346 Prior Restraint Considerations 347 Content Neutrality 348 On-Site/Off-Site Distinctions 348 Commercial/Noncommercial Distinctions 349 Regulating Noncommercial Content 350 Regulating Commercial Content 351 Special Considerations Regarding Political Signs 353 PART 7 Judicial Review Chapter 29 Procedures for Judicial Review 357 Form of Action 357 Briefs and Fees 359 Parties and Standing 360 Proper Parties 360 Individual Standing 361 Associational Standing 365 Intervention 366 Statutes of Limitation 367 Exhaustion of Administrative Remedies 370 Stays 372 Interlocutory Appeals 372 Standard of Judicial Review 373 Legislative Decisions 373 Quasi-Judicial Decisions 374 Deference in De Novo Reviews 375 Record on Appeal 376 Mootness 377 Disposition 378 APPENDIXES APPENDIX A Land Use Litigation in North Carolina: Case Digests 381 Supreme Court Decisions 381 Court of Appeals Decisions 405 Selected Federal Cases Arising in North Carolina 473 Cases by Subject 484 APPENDIX B Chronology of Amendments to North Carolina Zoning Enabling Statutes 491 APPENDIX C Directory of North Carolina Statutes on Topics Related to Land Use 495 INDEXES Case Index 501 Subject Index 521

9 Illustrations and Tables Illustrations Figure 3.1 Zoning by North Carolina Counties 18 Figure 6.1 Ordinance Zoning Map 40 Figure 6.2 Type of Rezoning Sought 43 Figure 10.1 Water Supply Watersheds 76 Figure 11.1 Heaton Case Development Outcome 102 Figure 11.2 Qualifying Area for Protest Petition 106 Figure 22.1 Rezoning Consistent with Plans 261 Tables Table 2.1 Key Differences between Legislative and Quasi-Judicial Decisions 7 Table 2.2 Typical Assignment of Functions 11 Table 3.1 North Carolina Population Residing within Cities and Towns 16 Table 3.2 Municipalities Adopting Zoning Ordinances 17 Table 3.3. Frequency of Use of Ordinances 18 Table 5.1 Cities Exercising Extraterritorial Jurisdiction (ETJ ), by Population 32 Table 5.2 Maximum Areas of Extraterritorial Jurisdiction (ETJ ) 33 Table 5.3 Summary of Requirements for Extraterritorial Zoning 34 Table 6.1 Table of Permitted Uses 45 Table 6.2 Municipalities Adopting Sign Regulations 46 Table 6.3 Counties Adopting Sign Regulations 46 Table 8.1 Municipalities Adopting Housing Code 57 Table 8.2 Counties Adopting Housing Code 57 Table 11.1 Frequency of Types of Zoning Approvals Sought 92 Table 11.2 Summary of Requirements for Mailed Notice of Zoning Map Amendments 98 Table 12.1 Overview of Spot Zoning Cases 116 Table 16.1 Special Use Permit Standards Deemed Most Difficult to Apply 164 Table 19.1 Overview of Common Law Vested Rights Cases in North Carolina 192 Table 21.1 Staff Reports to Boards: Types of Decision-Specific Information Furnished and Percentage (%) of Respondents Who Provide Each Type 233 Table 22.1 Jurisdictions Adopting Historic District or Landmark Regulations 265 Table 29.1 Frequency of Judicial Review Sought 358 Table 29.2 Summary of Statutes of Limitations for Land Use Actions 369 ix

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11 Preface Beginning with the 1952 publication of Phil Green s landmark Zoning in North Carolina, the School (previously Institute) of Government established a strong tradition of works focusing on land use law. Through the years a wide variety of publications in this area have been prepared. Publications by Institute faculty members Bob Stipe, Michael Brough, and Richard Ducker, as well as a host of subsequent publications by Professor Green, comprehensively document the evolution of the law in this field. These include specialized publications for boards of adjustment, planning boards, and zoning administrators. Additional books and bulletins have addressed particular land use topics, such as special use districts, vested rights, nonconformities, subdivisions, growth management, and regular updates on legislation and key litigation. The second edition of Land Use Law in North Carolina continues this tradition with detailed coverage of the many legal issues related to land development regulation. This book is intended as a legal reference work for those interested in the law related to development regulation in North Carolina. It builds on and expands the material originally covered in its first edition and in two editions of its precursor publication, Legislative Zoning Decisions. The previous groundbreaking contributions of my School of Government colleagues, as well as the helpful review, comment, and editorial assistance provided by current faculty and staff members, is gratefully acknowledged. Fleming Bell, Frayda Bluestein, Anita Brown-Graham, Jim Drennan, Richard Ducker, Bob Farb, David Lawrence, Tyler Mulligan, Jeff Welty, and Richard Whisnant all offered valuable assistance in the preparation of this book and the work it builds upon. The work herein has greatly benefited from their contributions. David Owens Chapel Hill Summer 2011 xi